Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I move this Bill on behalf of my colleague, Deputy Mick Wallace, and the wonderful parents and organisers of the Terminations for Medical Reasons group, some of whom are in the Visitors Gallery.

Over the past period, they have waived their privacy to share their pain. They have done this not to gain for themselves but solely to make the world a better place and to stop other people suffering in the way they had to. I recognise the legal input from Jennifer Schweppe, Dr. Ruth Fletcher and Dr. Eimear Spain, whose time and expertise in devising this Bill was provided gratisand for no reason other than to advance the public interest.

I would like to start by sharing an e-mail I received from a concerned grandmother:

Clare, I am in tears typing this as I have just got off the phone from speaking with my son who returned from Liverpool an hour ago, his beautiful wife having had a termination due to fatal foetal abnormalities.His wife was 6 mths pregnant and could go on no longer waiting for their baby to die in the womb.  What kind of a country are we living in that we expect our young people to suffer like this?  My son and daughter-in-law are 2 wonderful people and to see them suffer so much because of our dreadful laws is appalling.  It is hard enough for them to go through this ordeal, but to have to leave their country to have this termination is awful ... they are both devastated.  Please Clare, for them and people like them, [the law must be changed].

That e-mail was sent to me on 11 February 2015. The young couple in question had made their journey the previous day, 10 February 2015, the day 104 Deputies, including the Minister, Deputy Simon Harris, voted down this Bill. That was the last time it was brought before this House. I make that point not to embarrass the Minister or to make a cheap political point, but to emphasise the need to realise that the decisions we make or do not make in here have consequences. Without any shadow of a doubt, another couple will go through the same experience today because of the Government's decision to do nothing in this regard. Another couple will go through this experience tomorrow and more couples will go through it next week. This will go on until we decide to act.

According to the master of the Rotunda Hospital, there were 71 cases of fatal foetal abnormality diagnosis in that hospital last year. Forty-nine of those couples decided to travel, or almost one couple a week. The National Maternity Hospital has disclosed that it sees approximately two people with this diagnosis each week. We know that the Liverpool Women's Hospital has reported that between two and four Irish women are seen in that hospital every week. In other words, our failure to act last year has caused 200 women, their partners and their families to endure what a UN committee has described as "a violation" and "physical and mental suffering". Hundreds more will experience the same next year unless we deal with this issue.

When I proposed this Bill last year, I quoted one of the organisers of Termination for Medical Reasons, Amanda Mellett, who asked the Members of the Dáil to "stop making excuses while women in this ... situation continue to contact us week after week, unsure of where to go or who to turn to; in shock at the extent to which they are abandoned and stigmatised in the wake of the Irish Government's continuing excuse making". Earlier this month, an expert panel of the UN Human Rights Commission, in response to a case taken by Amanda Mellett, found that Ireland had violated her human "rights to be free from cruel, inhuman and degrading treatment", breached her "right to privacy", failed to protect her "rights to non-discrimination" and caused her immense "physical and mental suffering". The UN panel has obliged Ireland to provide Ms Mellett "with an effective remedy", including "compensation" and "psychological treatment" and "to "prevent similar violations occurring" by amending "its law [and] if necessary its Constitution".

There is no opt-out from this. We have until 7 December next to respond in detail to the UN expert panel. Contrary to what the Taoiseach has said, this judgment is binding. When we voluntarily signed up to the International Covenant on Civil and Political Rights, we agreed to be bound by it. We agreed to accept the interpretation of the covenant. There is no place for us to hide on this issue. I have heard a great deal of talk in recent days about the Constitution being breached, but what about the violation of our international human rights commitments? There has been no substantial talk about that. It is a fact that the Constitution and domestic law can never be used as an excuse for the violation of human rights. In the last Dáil, 50 Deputies wrung their hands and said something must be done. Sixteen months ago, we asked what the Government had done. Sixteen months later, not a single measure has been introduced to deal with these issues. In addition to the expert panel judgment I have mentioned, earlier this year 18 of our peer countries in the periodic review said we were violating human rights, but nothing happened as a result. That was the seventh international hearing at which Ireland was called on to amend its legislation. We have done nothing.

I have no doubt that the Minister will tell us about the citizens' assembly. We hear that people will be able to sit around and talk about these issues for 12 months at that forum. That will be followed by an Oireachtas committee, which might talk for another 12 months. The reality of the Government's approach is that it will be at least 2018 before any referendum is put before the Irish people. That is not to mind all the delays that happened with the Constitutional Convention and anything like that. I am setting out the perspective that will open up if our Bill is not dealt with here tonight. We are not saying the Bill is perfect. It can be amended. We need to do something because the Government is offering nothing in its place. I remind the House of the judgment that was issued by the Northern Ireland courts on foot of an action taken by the Northern Ireland human rights and equality commission against the Minister of Justice there. The courts made it clear that it was not open to the Minister there to avoid his or her obligations under human rights. That option is not open to us here either.

This Bill is incredibly restrictive. For the record, I assure the anti-abortion lobby that it is not a back-door attempt to get access to abortion in all circumstances. We are very prepared to go through the front door to demand access to abortion in all circumstances, but that is not what today's discussion is all about. It is ironic that when we proposed legislation to repeal the eighth amendment, people voted it down, and now the fact of it having been voted down is being used as a reason not to do anything on the matter before us today. I do not think that is good enough. The Bill before the House deals with the real and tragic cases of people who receive the devastating news, usually well into the pregnancy, that the foetus has a medical condition which is incompatible with life outside the womb. This is a medical diagnosis. It is not a legal opinion. It is not a disability. It is something that the medical profession sadly has to deal with on a weekly basis. The only choice people have - perhaps "choice" is a bad word to use in this context - is whether to continue the pregnancy until they miscarry or the foetus dies, or to travel.

Of course, we know that in many instances, people cannot afford to travel. It costs a minimum of €3,000 and up to €5,000. I know of people who got a diagnosis at 20 weeks, but could not afford to travel so had to spend 17 weeks at home waiting until the foetus died. Of course, it goes without saying that those who decide to continue on with the pregnancy - to wait as the people I have mentioned had to do - will be unaffected by this Bill. This legislation seeks to help those who cannot continue and who decide they have to turn off the life support machine for their own mental health and well-being. Our Bill provides that a woman should be entitled to have a termination here in Ireland if the agreement of "two medical practitioners " - an obstetrician and a perinatologist - is acquired. Such a provision has been sought by the masters of the maternity hospitals for more than two decades so that the proper treatment of women in these circumstances can be continued.

While there is no happy ending from this situation, we can make it a little bit less sad by ensuring we step up and help at a time when people are at their lowest ebb and most need that assistance. Against that backdrop, I find the excuses we have heard from those trying to explain why the Government might oppose this Bill utterly sickening and really insulting. We will follow up this point when we sum up at the end of this debate. If the Government really believed the Constitution was a barrier to dealing with this issue, it would come in here today and put on the agenda the immediate repeal of the eighth amendment to ensure human rights are not violated. It would ensure the other rights set out in the Constitution are vindicated. I suggest the personal rights of the citizen set out in Article 43.1 are being violated because of our lack of abortion provision. The Government has not proposed any measures to deal with this. Instead, we are being told that the Attorney General has decided that this proposal is unconstitutional. I have to say that is a pathetic cop-out and an excuse for inaction.

6 o’clock

We wrote to the Minister asking him to publish that opinion so it can be assessed and considered. At the very least, that is a minimum because 43 other legal people published a letter the last time around which had a different opinion from that of the Attorney General's. I noted the Minister's response, which he sent this afternoon, in which he said her advice is in line with legal advice received on the issue of fatal foetal abnormalities at the time of the Protection of Life During Pregnancy Bill. That is interesting because it confirms to us that that advice was not sought on our Bill, the Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) (No. 2) Bill, last time round or this time round. It certainly would be saying that it was not sought in the context of the violations of international human rights.

Again, we have to return to the simple legal fact that Attorneys General can get it wrong. This Attorney General has certainly got it wrong quite a few times. Other Attorneys General have had a different view on this issue. Other Attorneys General got it wrong before, such as in the X case. The truth of the matter is that regardless of whether it is constitutional, it can only be decided by the courts. It is as simple as that. This Bill is not repugnant to the Constitution. It is not in a sense clearly contradictory. At the very minimum, there is at least an arguable case that it could be possible for somebody diagnosed with a fatal foetal abnormality to get a termination in Ireland.

How do I know that? I know that because that is exactly the position the Irish State argued ten years ago this week in front of the European Court of Human Rights. Sadly, the European Court of Human Rights agreed because it said the State had put forward a tenable argument which could have been seriously considered by the domestic courts that a foetus was not an unborn for the purpose of the constitutional article. Even if it was, its right to life was not going to be engaged and, therefore, it did not benefit from the protection of Article 40.3.3°. It stated the courts would not operate with remorseless logic. It stated the woman’s case in question was not admissible because Ireland had shown that the remedy was possible in the domestic courts and that she had a reasonable prospect of success against our courts.

Of course, the courts never ended up testing this matter. Moreover, they never will. How in God's name could we expect somebody with a diagnosis of a fatal foetal abnormality - the bottom would have fallen out of their world, particularly if it was a much-wanted pregnancy, and they would be at their lowest ebb - to go into the courts to argue for the right to have a termination at home when they have more pressing things on their plates? That is never going to happen.

It is also the case that our courts have never adjudicated on this. The only way in which they will adjudicate on it is if we pass this Bill and allow the President to refer it on to the Supreme Court for adjudication in this regard. It would be entirely appropriate. There are many different cases that the courts have looked at. For example, there was the tragic case of PP v. HSE where they talked about no prospect of being born alive and things not being exercises in futility. They talked about the Constitution, saying as far as is practicable. If it is not practical to vindicate a right to life, then one does not have a necessity to do so and so on.

It might sound a little ironic, but this is a positive proposal. It is hard to envision something positive in the midst of terribly tragic circumstances. However, there is a significant and genuine desire across society to have this happen. Over 80% of people repeatedly have said that this measure should be introduced. What is the worst that will happen if we pass this? What would be so wrong with doing this? If we are wrong, we will only be in the same situation we are in now. What is the harm? If we are right, then we have the possibility of alleviating some of the pain of some of the people at the coalface of this devastating diagnosis.

Three weeks ago, Fianna Fáil had a Bill in this House dealing with property rights. The Government and the Minister claimed it was unconstitutional. The Minister even tabled an amendment which proposed it should be referred to the committee to deal with its constitutionality. He subsequently withdrew his amendment and allowed the Bill go through Second Stage. It is okay to do it for property rights but it is not okay to do it for women's rights. I find that nauseating. I cannot believe we would stand up in the Parliament and allow that type of attitude to go unchallenged. We cannot prevail over these double standards. There is nowhere for the Minister to hide. It has fallen on his lap. We can do a good thing today by passing this Bill and signalling to people that, at last, we are taking it seriously.

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